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DANGEROUS HALAKHAH

Haim Cohen

( Reformatted from original RTF version )

Halakhah is rabbinic law and legal rulings. Their present making is a bear-garden. Hundreds of rabbis issue rulings — each on his own judgement, each to his own flock — which state laws to flout, what commands soldiers are to disobey. This bear-garden made it possible for a religiously-observant student to righteously murder the Prime Minister of Israel.

The man arrested on suspicion of having assassinated the late Prime Minister has made the following claim in court: that “Halakhah (rabbinic law) states that if a Jew hands over his people or his land to the enemy he must be killed at once”. It is not clear according to this statement whether he arrived at this ruling by his own judgement, whether it was handed down to him by someone authorized to make halakhic rulings, or that he satisfied himself that this is what he remembered from his period of Talmud studies. Whatever the case, one may surmise that he made the statement in the full belief that this was indeed what halakhah bound him to do.

Who Is a Authorized to Make Halakhic Rulings?

Hearing a statement like the one quoted above at once stirs up a host of questions. What precisely is this thing called halakhah? Who has the authority to make and pronounce halakhic rulings or judgements? What is the status of conflicting and contradictory rulings rendered by different authorities? How binding is halakhah, as opposed to the law of the state? Can the fulfillment of a religious commandment be used as a defense in a criminal trial? Can there be a criminal halakhah?

The nature of halakhah has been debated countless times. Of the many attributes ascribed to the body of halakhah or to halakhot [plural of halakhah: the term halakhah means both the body of rabbinic law and a single ruling], only one is relevant to the present issue: halakhah is what Torah prescribes must be done, or the body of such prescripts. Halakhah is easy to recognize in the judgements collected into the great codifications, such as those of Rambam [a.k.a. Maimonides, 11th century] and of Rabbi Joseph Caro [16th century], even though many later rulings dare to take issue with these two celebrated codes lay down. It is more difficult to recognize halakhah in the rulings of latter-day authorities. They have given rulings on a number of contemporary burning issues ‘brought to their attention’ in the form of ‘questions’ from disciples or admirers. Though they intended their rulings ‘in reply’ to be generally valid, not all have been acknowledged as such among the all communities of the Jewish world. Even today there are still Rabbis busy deliberating and rendering halakhot — and not only within the framework of rabbinic courts — thus adding to the corpus of rabbinic law.

From where do these authorities draw their authority? From the biblical text, “ and you shall scrupulously observe all their instructions to you. You shall act on the instructions given you and the rulings handed down to you; you must not deviate from the verdict they announce to you either to the right or to the left” (Deut. 17:10-11). As early as Talmudic times, our Sages taught that “the instructions given you” meant the judgement handed down by a halakhic authority, while the “the rulings handed down to you” referred to the ruling of the judges or dayanim in a rabbinic court [dayanim is the plural of dayan = religious court judge]. To both authorities do you owe obedience, even “should they tell you that right is left and left is right”. (Sifrei Devei Rav, Deuteronomy, 154).

Others found their prerogative in the text: “Ask your father, he will inform you, your elders, they will tell you” (Deuteronomy 32:7). “Elders” we find as early as the assembly of seventy elders that Moses appointed to assist him (Numbers 11: 16-17). It was by Moses’ especial virtue that the Divine Spirit settled on their shoulders. Later generations replaced ‘Elder’ with ‘Sage’ (“No one can be an elder who is not a sage” [Kiddushin 32b]). The authority of the Elders to prescribe rules for your behavior passed to the Sages. An Aggadic Midrash [early commentary on biblical texts] informs us with complete certainty that the Sages “who appear in every generation, every single one of them received his portion from Mount Sinai”, that is, from God (Shemot Raba 28).

But just who is a ‘Sage’? The sages of Talmudic times simply stand out: they are true sages of wonderful originality. When they differed amongst themselves and issued conflicting instructions, they themselves affirmed that “both these and these are the living words of God”. They also found objective criteria to resolve difference of opinions. For instance, “Between a single and a majority opinion the majority ruling obtains”. There was also a subjective criterion: the opinion of a great and important scholar is not as that of an ordinary rabbi. Sometimes halakhah was determined according to the views of certain sages, whose opinion was preferred to that their rivals, either in every case or with respect to a specific field of law.

Every Rabbi Is ‘The Greatest of His Generation’

A ‘great’ rabbi is recognized by “his wisdom and his numbers”. The numbers (of his students or of his years of age) can be counted; but how to measure wisdom? Perhaps it was assumed that the wisdom of such a ‘great rabbi’ would be a generally acknowledged fact; a wisdom of the quality that brought fame to its possessor, whose reputation sped before him. As early as the Talmudic period, and even more so during the Middle Ages and up to modern times, the greatness of a sage was discovered in the nearness to God attributed to him. Thus it is told of Rabbi Yokhanan Ben Zakai that he understood “the conversation of the attending angels, of the demons and of the palm trees”; of Rabbi Hanina Ben Dossa that he had the power to do wonders and to change the order of creation; of Rabbi Akiva, that he had uncovered the secrets of heaven and sat in the company of angels. Kabbalists [students of Kabbalah (Jewish mysticism)] recounted how their teachers walked in and out the celestial palace. Hasids attribute to their Tzaddik [the rabbi-leader, usually charismatic, of a Hasidic community] regular dealings with God and His angels. Such prodigies of greatness confer as a matter of course absolute authority in halakhah. It is written in one of the Hasidic books that the tzaddiks are “the laws and the commandments” — a total identification of obedience to the commandments of Torah with obedience to the commandments of the Tzaddik. The Talmud also supplied them justification for their faith in their leaders: “For a single tzaddik was the world created”; “The tzaddikim are greater than the angels attending on God”; “God cancels his verdict in favor of that of a tzaddik” — one could go on.

In all currents of Judaism, the highest authority at any one time, the predominant leader, is known as the ‘Greatest of our Generation’. Perhaps there were times when all Israel knew who was the ‘Greatest of the Generation’ (though not even all Rambam’s contemporaries were of one mind about him). Today, such a consensus is no longer even remotely possible. For lack of a recognizable ‘Greatest’, the title has propagated indiscriminately — one rabbi bestows it on another; disciples, students, and admirers bestow it on their rebbe. Titles such as ‘genius’, ‘light of righteousness’, ‘saint’, ‘man of God’, ‘paragon’, ‘great light’, have become so common that they no longer tell us a thing as to the man’s true standing or ability. And since any rabbi in Israel may be given — and usually is given — the title of ‘Greatest of our Generation,’ there has been no way of preventing the splintering of the Greatest’s halakhic authority into ten thousand parallel or rival authorities, to the loss of all coherence. Whoever has been formally ordained as a Rabbi by implication enjoys the authority to deliver halakhic judgments and there is no rabbi in Israel will let loose of that power. Thus, every generation generates a thousand new ‘ruling’ voices.

The Scorn and Derision of Rabbis

I have written elsewhere that formal authority is not enough; it be supplemented by charismatic authority (kharisma, in Greek, = divine favor). Such is the authoritativeness that radiates from the personality of a halakhic authority [a posek halakhah] or from the divine qualities attributed to him, or which derives from the status of his office or function. Israeli law has bestowed the status of posek halakhah on the two Chief Rabbis of Israel and on the Council of the Chief Rabbinate. They are authorized to deliver “responsa and rulings on matters of halakhah to persons seeking their advice”. The law of the State, however, is not halakhah. From a purely halakhic point of view, the official position of Chief Rabbi may not give its owner any special standing. Indeed we know that some rabbis scorn the halakhic rulings of the Chief Rabbinate as non-binding; other halakhic authorities see in the office of the Chief Rabbinate an arrogation of power presuming to trespass on their own authority, or even smelling of ‘interpreting Torah not according to halakhah’ — a terrible sin.

The heart and soul of charismatic authority is the authoritativeness attributed to a posek (halakhic authority) by his followers and students. Whoever declines to acknowledge the authority of the Chief Rabbinate has his own rabbi and acknowledges his authority. Hasids acknowledge the authority of the Rebbe to whose community they belong, and reject that of every other rebbe. The Mitnagdim [historical opponents of the Hasidic movement since its beginnings in the 18th century] reject the authority of the Hasids’ rebbes, while cleaving to their own mentors — and there are as many mentors as there are congregations. There is not a community, not a school of religious thinking that does not have its own halakhic authority to lay down the law. A ruling rendered by Rabbi So-and-So binds only those who do him homage — not that every posek will admit to the fact. Every posek considers his ruling, in good faith, as the true interpretation of halakhah, and as far as he is concerned, all Jews must obey.

However, his rivals in halakhah, some because they despise his personality, others who dismiss his scholarly credentials, are quite likely to reject his rulings out of hand; and not infrequently will not hesitate to voice their derision and to make public mock of him. But that which the rivals deride, the followers faithfully execute, while they, in turn, sneer at the rivals, and would shave their own beards off rather than observe the rulings of the rival rebbe.

The Politicization of Halakhah

An outside observer sometimes gets the feeling that halakhah is but clay in the hands of the potter: to every posek his own public; to every halakhic authority his own rulings. There are, of course, a few basics that all agree upon, but it is precisely with regard to contemporary issues, which call for new rulings, that there are divisions of opinion and instruction. One adjudicates with mercy, another with merciless rigor. Posek A says that the laws of the State of Israel must be obeyed, posek B will prohibit obeying this or that law. Posek X is all for human dignity and the love of man, while posek Y preaches hatred of the gentiles and of ungodly Jews. What is truly wonderful is that all these clashing rulings are designated halakhah, and that each and every one of them will find adherents eager to take its yoke upon them.

The contemporary ‘burning’ issues we mentioned are mainly in the sphere of current politics and rabbis who hand down rulings on these issues have political objectives in view. They are asked questions and they give their responses, not for the greater glory of Torah, nor for the purpose of solving this or that difficult halakhic issue for its own sake, but in order to supply a halakhic basis to political movements and programs. Rabbi Avraham Shapira, former Chief Rabbi of Israel, has recently warned against rabbis “trying to gain stature among the common people and the ignorant of the land by rushing to take the lead and issue prescripts in Israel”. By their political rulings, he says, “they set the people even more at odds with each other and are destroying the [Jewish] world” (Ha’aretz, 16 Dec. 95). However, Rabbi Shapira himself more than once set his seal on political-halakhic rulings: he apparently wants such authority reserved to the ‘great ones of the generation’. Still, even in the religious camp there are many reputable people whose opinion is that halakhah and politics do not mix; to their mind any politicization of halakhah hurts halakhah and disrupts politics. One of the greatest halakhic authorities in the United States, Rabbi Yosef Soloveichik, has already delivered a ruling, that halakhah requires politics to be left to the politicians and war to the soldiers. Israel’s own halakhic authorities, however, do not accept his adjudication as halakhah.

Almost all of them hold that there is no question in the whole world to which halakhah does not have the answer: “Search in it and search again, everything is there” (Avot 5:22). Further, just as a judge in the state legal system cannot shirk judgement on the grounds that no answer to the matter in dispute is to be found in all his laws and precedents, so no posek may deny that halakhah can provide a solution to all problems. Concerning our own particular problem, we have no choice but to accept that making halakhic rulings for political purposes is a fact and common practice. Do not Ultra-Orthodox political parties proclaim that all their political actions must receive the prior seal of approval of their ‘Council of the Torah Greats’ or of the ‘Torah Sages’? And though these approvals are granted or withheld on political calculations, the Torah’s Greats and Sages are assumed to match their calculations to the body of halakhah whose authority they acknowledge. (For instance: on the political issue of whether or not to allow their parliamentarians to join the government coalition, they are assumed to have considered the propriety of sitting in an assembly of ungodly Jews or in the society of women, and whether the ‘transgressions’ committed by joining the coalition are counterbalanced by the benefits to be expected, in strengthening the Torah and expanding the well-being of its students).

The Halakhic Ruling Prohibiting the Evacuation of the Occupied Territories

Even on purely political issues, halakhic rulings are still based on interpretations of the Oral or Written Torah. A ruling that imposed on every Israeli Jew the duty to kill Arabs (Ha’aretz, 5 Dec. 94), was based on five commandments of Torah: to eradicate all trace of Amalek [as the first people to attack the Israelites after the exodus from Egypt, they represent all Israel’s hereditary enemies], to occupy the land, to sanctify the glory of God, not to stand aside when the life of your neighbor is at stake, to exact the revenge of the Lord. The fact this particular posek’s interpretations can be disputed is neither here nor there. Not only the posek himself but also his students and the members of his community all accept his readings as though handed down from Sinai itself. The more Arabs they find in their hearts to kill the more praiseworthy are they, and the better assured of heaven’s reward.

The danger of halakhah is, in large part, in the blindness of those who obey it. The Torah’s words: “You shall occupy the land and settle in it” (Deut. 11: 31) are interpreted as a divine injunction not to give up an inch of the land to the gentiles. The fact that there are other interpretations of that verse — for instance, as a promise and not as an injunction — makes not the least difference to the validity of the halakhic ruling rendered. A halakhic ruling forbidding the government to evacuate the Occupied Territories is blatant political interference, however halakhically sound it is. Yet poskim [plural of posek] do not refrain from interfering, even though it must be obvious to them that the government will not be able to take their rulings into consideration, not because they are halakhically unsound, not because their authors are not competent to make halakhic rulings, but simply because governmpolicy — of any government — is not determined — and must never be determined — by halakhah. The government must make its deliberations on the basis of the substance of the issue under discussion, constrained only by the law of the land.

Even so, such political halakhot are dangerous. The very act of making such rulings not only undermines the pillars of the rule of law and makes a mockery of democracy; it gives people who must obey lawful orders a religio-conscientious pretext to evade their duty. And to remove the smallest doubt from anyone’s mind that it was precisely that dangerous conclusion that the poskim (of the ruling prohibiting the evacuation of the Occupied Territories) intended, they went on to add (they or others) the explicit ruling that, according to halakhah, soldiers do not have to obey orders from their superiors which relate to evacuation of the Territories. Just as the halakhic poskim are well aware of the fact that their ruling will have no influence on the government, so are they equally aware that there will be many religiously observant soldiers who acknowledge the poskim’s right to command and the authority of their rulings and so what if they endanger the safety of the army and the security of the State! I fear that this particular halakhic ruling is also intended to be a kind of manifesto — a proclamation to make it abundantly and publicly clear to the whole country that no law, no legal order, can stand against a halakhic prescription. (One often hears poskim justifying their behavior by the example that it is beyond question that they are permitted to forbid soldiers to obey an order to violate the Sabbath. This borders on demagoguery, for one of the best known rules in the Israeli army is that commanders are prohibited from ordering soldiers to violate the Sabbath except in an emergency (when the rule of pikuakh nefesh applies, i.e. saving life takes precedence). Any commander breaking that prohibition is giving an unlawful order, though not so flagrantly unlawful that it must not be obeyed, and a soldier charged with failure to obey has the defense that, in issuing the order, the officer exceeded his authority.

Even ‘Dangerous’ Halakhic Rulings Should Be Allowed

The halakhah that forbids giving back the captured territories and that makes it a soldier’s duty not to obey an order to evacuate these territories is remarkable for the exceptional number of poskim who have issued it. There is definitely ‘greatness of number’ here. It is not for me to say if there is also ‘greatness of wisdom.’ Not only are most of the rabbis of Judea and Samaria to be found on the list, but also no less than a former Chief Rabbi, Rabbi Goren, who thrust himself at the head of the proscribers. The flocks that follow these rabbis number many tens of thousands — perhaps more than those who follow the rabbis who have given opposite rulings, for instance, Rabbis Ovadia Yosef and Yehuda Amital. The fact that this halakhah has aspects that can be interpreted this way or that is not appreciated by the man in the street. Somehow, the general public is under the impression that government policy to exchange land for peace violates the law of Torah and that Jews who wish to guard their souls from the divine wrath are commanded to man the breach and refuse it passage.

It is Israeli law that any halakhic authority is free to publish his rulings openly and widely, as long as their publication does not constitute a penal offense. I tend to think that even ‘dangerous halakhot’ should be allowed a voice, provided that publication is made, expressly or implicitly, for the purpose of teaching Torah itself, or, as the Sages put it, to teach so that others may learn and benefit from their learning.

Any man has the right to think and say that government policy is wrong and should be corrected, and to base such thinking or saying on halakhah. It goes without saying that poskim may, like any other men, propose to government or Knesset that they change their policies to conform to halakhah. There is no conflict between law and theoretical halakhah [that category of halakhah which is not, necessarily, to be carried out] or academic halakhah. Even the halakhic ruling forbidding return of territory — just like the political platform which opposes return of territory — has the right to a stall in the market-place.

Poskim Who Incite to Hatred and Mutiny

No such right, however, is given to halakhot that call on people to kill Arabs or to disobey legal orders. To the subject of halakhot permitting murder we shall return. As to obeying lawful orders, the situation is that any person suborning or inciting a person serving in the army not to obey a lawful order is liable to seven years imprisonment (Penal Code, Article 110). It can also be argued that a call to soldiers not to obey their superiors’ orders constitutes incitement to mutiny and disloyalty, which is punishable by a five-year sentence (Article 134).

Concerning incitement to mutiny, the question whether the argument invoked in justification of the deed is true or not is immaterial (Article 137): it is immaterial that halakhah indeed forbids obedience to the order. The offenses of sedition and incitement to mutiny are committed even if not a single soldier is persuaded to disobey: the offense is in the very uttering of words of sedition or of incitement to mutiny with intent to cause rebellion or mutiny.

The poskim who issue such halakhic rulings are in the eyes of the law committing sedition and incitement to mutiny and if the Government’s Legal Adviser decides, as it is within his legal discretion to do, not to charge them (which is also what I would decide), it is only out of respect for Torah and those who study it and to avoid the storm that would be stirred up by going against them. Whether they are brought to trial or not has no bearing whatsoever on the criminality of their rulings. The presumption that a man is innocent until convicted by a competent court applies to the individual ‘offender’ only. It has nothing to do with the criminal character of the offense itself.

The argument that halakhah mandated the criminal offense for which the defendant is on trial is no defense against his conviction. Halakhah cannot stand in the way of enforcing State law. The same, however, is not true regarding the severity of the sentence. A man who, in committing an offense was guided by his conscience or by halakhah, may get a lighter sentence, unless — as is equally possible — the court applies the opposite thinking and hands down a longer sentence because the man gives grounds to fear that he will repeat his crime in order to satisfy religious commandments.

Rabbis Who Permit the Killing of Arabs

The commandment to kill Arabs is not the only halakhah to have incited acts of murder; other dangerous and criminal halakhic rulings have been made in recent days. Whereas the halakhic prohibitions on returning territory and obeying evacuation orders were promulgated and signed with great display by rabbis of name and fame, these other rulings were issued by rabbis, most of whom lacked the civil courage make their name public — or, following Rabin’s murder, to stand by the ruling they had made. They preferred anonymity and to take refuge in a ‘halakhic underground’. One, who at the time had made his ruling public, tried to deny it after Rabin was murdered. (Rabbi Yoel Bin-Nun, an honest man who wanted to publish the names of these poskim, was forced for fear of his life to keep silent.)

Since it is only through hearsay that I know some of the names, I will not expose their disgrace here.

One of these ‘authorities’ deemed the interdiction against giving back the Territories so severe that he permitted or recommended the planting of mines and explosive charges along roads leading to the settlements to be evacuated. Israeli soldiers or passers-by might be killed? — that was outweighed by the necessity to prevent the evacuation of an inch of the Land of Israel. Had these facts not been published in the press and not denied — except in very feeble terms, and after Rabin’s murder — it would be impossible to imagine that Jewish halakhah could be exploited and blasphemed against by its poskim for such murderous intent. Incitement to mine roads is tantamount to incitement to offend against Article 339 of the Penal Code, and perhaps even to a threat of murder. Someone who writes and sends a letter containing such a threat is liable to seven years’ jail (Article 307). The mere fact of publishing a letter with a threat to kill an animal is punishable by three years in jail (Article 460). to say, the Penal Code makes no distinction allowing that the posek intended to hurt ‘only’ Palestinian soldiers and Arab passers-by.

What is the Meaning of Din Rodef?

[Din rodef is the status in halakhah of a person pursuing another in order to kill him.] With respect to the mine-laying halakhah, one could say that, though displaying a corruption of values beyond belief, the danger of it coming to bloody fruition was not very great. Certainly, volunteers could always have been found ready — and eager — to plant the charges, but alert army eyes would probably have detected them before disaster struck. Two other rulings, however, also distributed recently, pose enormous danger. More than that, there is reason to fear that it was they that brought about the assassination of the Prime Minister. The first is the halakhah that Din Rodef applies to whoever makes peace with the Palestinians; the second that the same persons are also subject to Din Moser [the halakhic status of a Jew who betrays a fellow-Jew to the enemy (moser = informer)].

What does Din Rodef say? In Rambam’s formulation: ‘Whenever one pursues another to kill him, every Jew is commanded to save the attacked from the attacker, even at the cost of the attacker’s life’ (Mishne Torah, Murderers and Preserving Life, 1:1). In other words, if one sees a man about to kill another man, one must stop him, even at the cost of killing him. (In our Penal Code, this commandment has become an argument for the defense: killing a man to protect the person or property of another man is not a crime). However, the rodef must be on the point of killing. Should he be about to commit another crime (with the exception of the rape of an affianced girl) even the gravest, such as idolatry, it is forbidden to kill him; he must be brought to justice (op. cit. 11). It logically follows that a man about to commit ‘the crime’ of returning the Territories should be brought to court, in other words, that it is forbidden to kill him. The fact that the court might acquit him, or that it might be difficult to bring him to trial, does not suffice to sanction his killing. Furthermore, it is forbidden to kill the rodef if there is an alternative way to prevent him from killing — for instance by arresting him, binding him, or wounding him (or by parliamentary means). Whoever kills the rodef when the attacked person could have been saved by other means is considered to have committed murder and can be expected to be put to death by God (op. cit. 13.

I am at a loss to understand how Din Rodef can apply to the Prime Minister. Exactly who was about to be killed by him? Who was the destined victim that the killer has saved from him? Even were there grounds to fear that the peace he was about to make with the Palestinians put lives in danger, that danger was still remote and there was no victim needing immediate rescue. Real intellectual acrobatics (and, it goes without saying, halakhic acrobatics) are necessary to identify in the person of the Prime Minister, or any other peacemaker, a rodef as halakhah defines it.

It should be understood that these poskim were not presuming to introduce innovations into the halakhot themselves that govern Din Rodef. The content and formulation of these halakhot have been fixed for hundreds of years and every schoolboy knows them. What the poskim did was to rule that Din Rodef applied, of all people, to the Prime Minister of Israel: they made an as-it-were-factual ruling which discovered in the Prime Minister the qualities of a rodef. I fear that such an argument contradicts the very fundamentals of Din Rodef. The very fact that a halakhic authority or court can leisurely discuss whether such and such person is a Rodef is clear evidence that the person in question cannot be one, since the danger cannot be ‘present and immediate.’ A man planning to kill another in the future cannot be a rodef from whom a victim — who does not yet exist — must be saved forthwith. Declaring that Din Rodef applies to a man sitting in his home and office and going about his regular business is, on the face of it, the very last word in self-contradiction.

Even Rabbi Shapira said, after the murder, that he would not have believed it possible that “Anyone would rule that it is permitted to kill a fellow Jew on the grounds of Din Rodef because of acts stemming from a difference of opinion or conflicting views between public organizations”. He added that “There is no connection between this despicable murder and the Torah values — it stems from poisonous heretical thinking” (Ha’aretz, 23 Nov. 95). And yet all the signs point to the fact that some posek’s extension of Din Rodef to the Prime Minister led a commandment-observing, halakhah-respecting Jew to commit murder.

There is not a crumb of comfort to be derived from the fact that the man and his mentors are now under sentence of death by Divine visitation.

What Is the Meaning of Din Moser?

It took acrobatics no less ludicrous — in the service of the very same objective — to extend Din Moser also to the Prime Minister. This is how Rambam defines Din Moser: “It is forbidden to hand over a Jew to the heathen, neither his person nor his goods, even if he is wicked and a sinner, even if he causes distress and pain to fellow-Jews. Whoever hands over a Jew to the heathen has no part in the next world. It is permitted to kill a moser wherever he is. It is even permitted to kill him before he has handed over [a Jew], as soon as he has said: I shall hand over so and so, his person or his property, he has put himself under sentence of death. And if the man is warned, and told not to hand over, but retorts boldly that he will do so nonetheless, it is a divine commandment to kill him, and the sooner, the better... there are numerous cases in the cities of the Maghreb where informers who are known to reveal people’s money are killed or are handed over to the heathen authorities to be put to death or beaten, or imprisoned according to the degree of their iniquity” (Mishne Torah, Torts 8, 9-11).

It is as plain as day that the context of Rambam’s codification is life in the Diaspora; it was a time when the threat of legal murder followed at the heels of every Jew and their property was open sport. A Jew who gave away his fellow-Jew to the Gentiles, to wreak their evil instincts on him or his property, was like a traitor. “The numerous cases” of killing the traitor, the moser, or handing him over to the Gentile courts were no more than acts of self-defense. The temptation to make easy money or to curry favor with the Gentile by betraying a Jew was sometimes very strong. Such betrayal was like deserting from the Jewish camp in time of war — the moser put the members of his community in real danger. But we, in Israel, have no mosrim [plural of moser], we do not live in fear, dependent on the good will of the Gentiles. Nor do we need to seek protection from them. We have our own traitors and spies — those who endanger the safety of our State and conspire against its legal institutions — but they have absolutely nothing in common with mosrim.

The tortuous reasoning of the halakhic ‘authorities’ who made this ruling may have been that handing over the Territories to the Palestinians is tantamount to handing over Jewish property to the Gentiles. But, if the Territories are indeed Israeli property, then they are State property. The State, acting through the government, does with its property what it deems fit and necessary. The fact that it is wrong to do so in the mind of some posek does not make it a moser. It can be compared to the situation of the of a ghetto, who takes the property of rich Jews to appease or bribe Gentiles. Even if his expectations prove mistaken, even if all the rich Jews opposed him at the time, he is not a moser deserving death, only a bad administrator not perhaps worthy of re-election. The essence of betrayal (the act of a moser) is that it is done secretly, like any other act of informing. A handing-over done openly and in full view may be a political or economic mistake, or even a violation of the halakhic injunction against giving back the Territories — but never the act of a moser.

It is a deed of frightening stupidity to compare the Prime Minister of Israel, a state which has taken proud seat among the nations of the world, to the miserable toadies and tale-bearers who put Jews at risk of torture and persecution in the Middle Ages. In my naivety, I thought no man with eyes in his head could ever preach such poison.

So I thought. But what have journalists now discovered? — that three rabbis from Judea and Samaria, all reputable men in good standing, nine months ago dispatched a written question to thirty of the greatest authorities in Israel in matters of Torah and its teaching (including Rabbi Avraham Shapira): Would it be correct to apply Din Moser to the Prime Minister and his ministers? Not a single one of the thirty returned a negative answer. Not a single one of them raised his voice to the heavens in protest and indignation. Not that they gave their endorsement to that abominable ruling: they simply did not reply. Who can then be surprised that somewhere student-zealots read assent in their silence? Now the rabbis are trying — all of them or some of them — to wash their hands of the filth; it was not their hands, they declare loudly, that shed the blood. Truly?

‘As If He Created The Whole World’

All these ‘halakhic’ rulings — and maybe others that have not come to my attention — had a single purpose and outcome — to whip up the (evil) instincts of these poskim's obedient disciples so as to make them vigilant and defiant in defense of the Territories — not, perish the thought, by endangering their own life, but by putting a price on the heads of the state’s ministers. The rulings were designed to incite and seduce and turn guileless God-fearing Jews into despicable killers. Very dangerous halakhot, indeed.

There is no doubt but that these halakhot were spawned and generated in a climate of religio-nationalistic fanaticism and fundamentalism (quite comparable to the Muslim kind that has afflicted us). This fanaticism has fed on the excommunications and ostracizings and curses and imprecations which certain rabbis and Kabbalists have been heaping on the heads of the civilian government for years. Indoctrination to fanatic violence ‘for the greater glory of God’ has succeeded beyond the wildest hopes and expectations of its authors.

And who knows what tomorrow will bring? Anyone working faithfully for peace with the Palestinians and the Syrians puts his life at risk. The poison distilled into hearts is not yet dissolved, and the wrath of fanatic bully-boys can flare up again. Who can assure us that tomorrow someone will not discover that every epikoiros, every free-thinking Jew, is under a halakhic death sentence — a wonderful ruling permitting the eradication of all non-believing Jews (government ministers included) from the country and the world.

And what will happen to that Torah ‘whose paths are the paths of pleasantness and its ways the ways of peace’? What about the greatest rule of the Torah not to do to another what you would not wish him to do to you? Will it in fact be the religious fanatics and the halakhic poskim who succeed in making Israel forget its Torah of truth and mercy?

Rambam ends the section of Mishne Torah on Din Rodef with the Mishnah Sages’ celebrated saying: “Whoever ends a single life in Israel, it is as though he destroyed the whole world: whoever saves a single life in Israel, it is as though he created the whole world”. Concerning one particular life in Israel, the “as though” can be left out.